Criminal Defense of Juvenile Delinquency Matters

At Robert W. Brown, Jr., no matter what criminal offense your child may have been charged with, you will get the professional legal help you and your child need. In defending a juvenile court delinquency petition, it helps to know the inner workings of the prosecutor’s office. Robert Brown is a former State’s Attorney, so he has special knowledge of how and why these matters are brought. Mr. Brown is a respected and experienced criminal defense attorney in Lake County ready to help you with personalized, quality legal representation.

Prior to the passage of the Illinois Juvenile Court Act of 1899, youths were tried in the adult criminal court system and treated like adults. While the Juvenile Court Act speaks of lofty goals of “protection, guidance, care, custody and guardianship of the persons of boys and girls who are delinquent,” there is little that distinguishes juvenile court from regular criminal courts.

Several years ago the General Assembly changed the Juvenile Court Act and mandated that the terms dispositional and adjudicatory hearings would no longer be used, and replaced them with the more familiar criminal terms of trial and sentencing hearing. In that same spirit, the legislature now requires minors convicted of a felony to submit DNA samples to the state police to be kept on file for their lifetime. Minors adjudicated as delinquent of certain sex crimes are required to register as juvenile sex offenders.

The new Illinois laws effective January 1, 2010 include the following:

Youths 17 years old charged with a misdemeanor are under the jurisdiction of the Juvenile Court Act instead of the adult court. (Public Act 95-10310) Those 17-year-olds charged with a felony will still be under the adult court, but 17-year-olds charged with misdemeanor offenses will be tried in juvenile court where they are more likely to receive the rehabilitation services to change their behavior. Illinois has joined 38 other states and the District of Columbia that considers 18 as the age of adult jurisdiction for misdemeanors.

A police officer has the power to arrest a minor without a warrant, when he has probable cause to believe the minor has violated or attempted to violate the law. A minor may also be arrested for violations of supervision or probation. The juvenile court judge also has authority to issue an arrest warrant.

Once taken into police custody and placed under arrest, a youth must be informed of his or her Miranda rights prior to interrogation. Any time a youth is taken into police custody and is not free to leave they have been arrested. However, being arrested does not always mean they will be formally charged. Officers may release juveniles from police custody without further action, either on the street or from a police station to their parent or guardian. Any officer who takes a youth into custody must legally make a reasonable attempt to notify a parent or legal guardian [705 ILCS 405/2-6]. At any time when a juvenile is in police custody, parents or guardians may request to see the youth.

When a minor is accused

A minor may be charged with any violation of a federal, state or municipal law. When charged with a traffic offense, the minor is considered an adult and the minor is directed to appear in traffic court.

Typically, minors and their parents are summoned to juvenile court when the State’s Attorney files a verified petition seeking that the minor be made a ward of the court and detailing the criminal acts alleged to have been committed. Parents are usually served with a summons and a copy of the petition by police officer or probation officer. Service must be made at least three days before the scheduled court date.

There are no statutory provisions allowing a minor to post a cash bond or sign a personal recognizance bond. Therefore, minors charged with less serious charges are released to their parents or guardian subject to court-imposed conditions. Those conditions require the minor to do the following: not violate any criminal statute; report to juvenile probation in person as directed by the court; not possess dangerous weapons; reside with his or her parents or in a foster home; attend school or certain court-directed programs; abide by curfew requirements; stay out of certain geographic areas; not associate with certain individuals; and comply with any other court-imposed conditions.

Minors charged with more serious or violent crimes are often detained in a juvenile detention facility pending trial.

Under most circumstances, a minor will be tried in the county (venue) where the alleged violation occurred. Occasionally, the venue may be moved to another county.

A minor taken into temporary custody by the police must be brought before a judge for a detention hearing within 40 hours, exclusive of Saturdays, Sundays and court holidays.

A minor must be brought to trial within 120 days of a written demand for trial being made. The prosecution may be granted thirty additional days upon a showing due diligence in bringing a minor to trial. Minors in custody must be tried within 30 days.

The absence of a minor from a trial for a felony does not prevent the court from concluding the trial if the prosecution (through substantial evidence) shows that the minor is willfully avoiding trial.

As a general rule, a minor charged with a delinquency petition is not entitled to a jury trial. All delinquency proceedings are tried before a judge unless the Act provides for a trial by jury.

Minors may be tried as adults

Youth may also be automatically transferred, or waived, to the criminal court [705 ILCS 405/5-130]. Youth are excluded from the jurisdiction of the juvenile court and automatically transferred to adult criminal court if they ware 15 years of age or older at the time of the alleged crime and are alleged to have committed first degree murder, aggravated criminal sexual assault, aggravated battery with a firearm where the juvenile personally discharged the firearm, armed robbery committed with a firearm, or aggravated vehicular hijacking committed with a firearm. Additionally, youth 15 years of age or older who are alleged to have committed offenses relating to the sale, possession, and manufacturing of certain weapons on school property, regardless of time of year, are also subject to automatic transfers to the adult court [705 ILCS 405/5-130(3)(a)].

Automatic transfers also occur when the youth is at least 13 years of age at the time of the alleged offense and the alleged offense is first degree murder committed during the course of either aggravated criminal sexual assault, criminal sexual assault, or aggravated kidnapping [705 ILCS 405/5-130(4)(a)]. Any juvenile previously tried and convicted in the adult criminal court is automatically transferred to criminal court for subsequent law violations.

Automatic transfer cases originate in the adult court, whereas all other types of juvenile transfers must be presented to a juvenile court judge who determines whether or not to grant the transfer.

A minor’s rights

At any trial, (either by a judge or jury, if allowed) every minor has the following rights:

1. Plead not guilty or persist in any not guilty plea previously made

2. Presumed innocent of the charge(s) filed

3. Require the prosecution to prove guilt beyond a reasonable doubt

4. Not to be required to testify against oneself

5. See and hear the prosecution’s witnesses and evidence in open court and have an attorney cross-examine those witnesses

6. Present evidence or call witnesses of one’s own and have the court require them to come to court to testify

Verdict and sentencing

If the court finds that the minor is not guilty, the judge will dismiss the petition and discharge him from any detention or restrictions previously ordered. If the court finds that the minor is guilty, the judge will set a date for a sentencing hearing, to determine if it is in the best interest of the minor and the public that he be made a ward of the court.

Prior to sentencing, a social investigation report is conducted by the juvenile probation department. The report is exhaustive in content and includes the minor’s physical and mental problems, school record, personal habits, family situation and background, the impact the offense had upon the victim, and the minor’s history of delinquency or criminality.

At the sentencing hearing both the prosecution and the defense may make additions, deletions or corrections to the social investigation report. Both sides may introduce evidence, call witnesses and make arguments in mitigation and aggravation as to what they think the sentence should be. The minor also has an opportunity to address the court and make a statement.

At sentencing, a judge in a delinquency trial has a full range of options depending on the nature of the charges. The minor may be placed on supervision, probation, conditional discharge or sentenced to the Juvenile Division of the Department of Corrections. The minor may also be sentenced to thirty days detention in the juvenile detention facility, ordered to attend school, complete court-ordered treatment or sentenced to a host of other options which are spelled out in detail below.

Sentencing options

Court supervision - “a disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court, at the successful conclusion of which disposition the defendant [or minor] is discharged and a judgment dismissing the charges is entered.” (730 ILCS 5-1-21). Court supervision is unique to Illinois and it is a way of avoiding an adjudication of delinquency. Unfortunately, court supervision is not available in juvenile cases if the State’s Attorney (Prosecutor) objects. Essentially, the State’s objection to court supervision bars the judge from imposing a disposition of supervision in the face of such an objection. The federal government and most other states do not recognize "court supervision" and treat such a disposition as a conviction.

Probation - "a sentence or adjudication of conditional and revocable release under the supervision of a juvenile probation officer." Probation is for a fixed period of time but may be extended or revoked for other violations.

Conditional Discharge - similar to probation but usually involves no direct reporting to a probation officer. It often has less stringent requirements than probation.

Terms and conditions

As a condition of supervision, conditional discharge or probation, a judge may impose some or all of the following terms and conditions upon the minor:

1. May not violate any criminal statute of any jurisdiction

2. Make a report to and appear in person before any person or agency as directed by the court

3. Work or pursue a course of study or vocational training

4. Undergo medical or psychiatric treatment

5. Attend or reside in a facility established for the instruction or residence of persons on probation

6. Support his or her dependents, if any

7. Refrain from possessing a firearm or other dangerous weapon

8. Permit the probation officer to visit the minor at his or her home or elsewhere

9. Reside with his or her parents or in a foster home

10. Attend a non-residential program for youth

11. Make restitution

12. Contribute to his or her own support at home or in a foster home

13. Perform some reasonable public or community service

14. Participate with community corrections programs

15. Pay costs

16. Serve a term of home confinement

17. Remain within the interior premises of the house within certain hours

18. Allow any person or agent designated by the court to determine compliance by allowing access to the minor’s home

19. Use an approved electronic monitoring device if ordered by the court

20. Refrain from entering a designated geographic area except upon terms as the court finds appropriate and during certain hours

21. Refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including, but not limited to, members of street gangs and drug users or dealers

22. Undergo a medical or other procedure to have a tattoo symbolizing allegiance to a street gang removed from his or her body

23. Refrain from having in his or her body the presence of any illicit drug prohibited by the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, unless prescribed by a physician, and shall submit samples of his or her blood or urine or both for tests to determine the presence of any illicit drug

24. Comply with other conditions as may be ordered by the court

The court may (as a condition of probation or of conditional discharge) require that a minor found guilty of any alcohol, cannabis, methamphetamine, or controlled substance violation, refrain from acquiring a driver's license during the period of probation or conditional discharge. If the minor is in possession of a permit or license, the court may require that the minor refrain from driving or operating any motor vehicle during the period of probation or conditional discharge, except as may be necessary in the course of the minor's lawful employment.

The court shall order that a minor who is placed on probation or conditional discharge for a sex offense submit to, and successfully complete, sex offender treatment.

A minor on probation or conditional discharge shall be given a certificate setting forth the conditions upon which he or she is being released.

The court shall impose upon a minor placed on probation or conditional discharge, as a condition of the probation or conditional discharge, a fee of
$50 for each month of probation conditional discharge, or supervision ordered by the court. (This fee may be waived or reduced by the court)

The Chief Judge of each circuit shall adopt a system of administrative sanctions for minors in violation of the terms and conditions of a sentence of supervision, probation or conditional discharge.
(Source: P.A. 93-616, effective 1-1-04; 94-556, effective 9-11-05.) [705 ILCS 405/5-720]

Removing criminal records - Expungement

All juvenile records are sealed to ensure that juvenile criminal history records will not be available to certain entities, such as potential employers, once the juvenile becomes an adult. Sealed records are still available to law enforcement, judges, state's attorneys, the military, and other specific individuals. However, some youth are eligible to expunge their juvenile criminal records, removing them in their entirety from any court or law enforcement systems [795 ILSC 405/5-915].

A youth's records are eligible for expungement if the youth is at least 17 years of age (or 18 years of age for misdemeanors after January 1, 2010) and the youth:

Was arrested and not charged.

Was charged but not adjudicated delinquent.

Successfully completed court supervision.

Was adjudicated delinquent for an offense that would be a misdemeanor, petty, or business offense if committed by an adult.

Felony records many not be expunged except for those showing charges of Class 4 drug possession of cannabis (less than 500 grams), Class 4 possession of a controlled substance, Class 4 prostitution convictions, and Class 4 convictions under the Methamphetamine Precursor Control Act [720 ILCS 648/15] or the Steroid Control Act.

Youth may qualify to expunge their juvenile criminal records if they were arrested but not convicted of first degree murder or any felony sex offenses. If a youth was arrested but not convicted for the aforementioned offenses, they expunge their juvenile records if they are at least 21 years of age and:

Have not been convicted for any offense since their 17th birthdays.

It has been at least five years since their last juvenile court proceeding.

If committed to IDJJ, been at least five years since discharge from IDJJ.

The steps to expunge juvenile records include filing three forms with the court and paying a fee. Forms include:

A petition for expungement.

A notice of expungement.

An order with the clerk of the circuit court within which the youth was convicted.

After 45 days, the youth must contact the clerk to determine the status of their petition. During these 45 days, judges and state's attorneys have the ability to challenge the youth's petition for expungement. If the court grants the petition for expungement, the juvenile will pay a fee and the Illinois State Police will remove the youth's records. However, expungement statutes do not require state's attorneys or other prosecutor's offices to destroy internal office records, files, or databases. Additionally, law enforcement, prosecutors and the Illinois Department of Corrections may require disclosure of expunged juvenile records if an individual applies for employment with these agencies [705 ILCS 405/5-915(8)(a)].

In 2009, Illinois passed legislation making all juveniles charged with misdemeanors eligible for expungement, regardless of the outcome of the case. For youth charged with misdemeanors, a motion for expungement must be filed by the youth's counsel within 30 days of the judgment on the case. If a motion for expungement is filed, the court will set an expungement review hearing to occur within a month of the youth's 18th birthday or within a month of completion of the sentence, whichever is later. If prosecutors do not file objections as outlined in the law, expungement of the record will be automatic. To further prevent the unnecessary release of confidential juvenile data, the Act also prohibits the transfer of confidential juvenile arrest records from the Department of State Police to the Federal Bureau of Investigation.

A finding of delinquency does not disqualify a minor from holding public office in the future or prevent licensing by a public authority.

Parents’ responsibilities

While parents may not be held legally accountable for the criminal actions of their children, juvenile court judges have the authority to order parents, guardians or legal custodians to take or refrain from certain actions. In Illinois, a parent may be ordered to pay the child’s cost of defense even if the parent himself is the victim.

Parents may also be responsible for certain civil damages caused by the child. The court may order a parent to pay probation service fees, court restitution, and contribute to the costs of treatment for his child.

Issues of confidentiality

Historically, juvenile court records have been deemed confidential and not open to inspection. Police departments have been required to maintain separate records and remove the names of juveniles from regular reports.

Presently, many parties are entitled to inspect these records and there exists so many exceptions to the rule of confidentiality that even the general public may gain limited access to these records. School officials, the Illinois Secretary of State under the Vehicle Code and members of the news media, have access to considerable information.

The key to making sure that your rights and the rights of your child are protected is obtaining the services of an experienced and highly qualified criminal attorney. The Law Offices of Robert W. Brown Jr., P.C. in Libertyville, Illinois is devoted to representing the rights of those who have been arrested.

Note: There are thousands of criminal offenses and procedural rules in Illinois, and the General Assembly is constantly amending existing offenses, adding new ones or increasing the penalties imposed. Therefore, it is beyond the scope of these web pages to discuss all of them.

The Juvenile Court Act of 1987, as amended, is contained in Chapter 705 of the Illinois Compiled Statutes entitled, "Courts." Portions of Chapter 720 entitled, "Criminal Offense," Chapter 725 entitled, "Criminal Procedure," and Chapter 730 entitled "Corrections" also apply to juvenile cases. These publications may be found in any public library or on our Web Resource page.

DISCLAIMER: The information contained in this web page is not intended to serve as legal advice or as a substitution for a consultation with a qualified criminal attorney. New laws are frequently passed by the General Assembly and the Appellate Courts of Illinois are constantly issuing opinions interpreting how the law is to be applied, therefore it is imperative that you consult with a legal professional.

* "The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your call. But be aware that contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established"